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Glenn Verser v. Leslie Turner

July 7, 2011

GLENN VERSER
PLAINTIFF,
v.
LESLIE TURNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Elaine E. Bucklo

(N-72074),

MEMORANDUM OPINION AND ORDER

Plaintiff, Glenn Verser, an inmate at the Stateville Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Correctional Officers Leslie Turner and Cleo Johnson violated his right to due process and Lieutenant Makowski ignored his complaints regarding the conditions of his confinement in segregation. Plaintiff also raises a retaliation claim. Presently before the Court is Defendants' motion to dismiss the complaint for failure to state a claim. For the reasons stated in this order, the motion is granted in part and denied part.

It is well established that pro se complaints are liberally construed. Kaba v. Stepp, 458 F.3d 678, 681, 687 (7th Cir. 2006). Pro se submissions are held to a less stringent standard than formal pleadings drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To satisfy the notice pleading requirements of Fed. R. Civ. P. 8(a)(2), the plaintiff must only state his basic legal claim and provide "some indication . . . of time and place." Thompson v. Washington, 362 F.3d 969, 971 (7th Cir. 2004). While a complaint challenged by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp., 550 U.S. at 555 (citations omitted).

In addition, when considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court assumes all factual allegations in the complaint to be true, viewing all facts--as well as any inferences reasonably drawn therefrom--in the light most favorable to the plaintiff. Bell Atlantic Corp., 550 U.S. at 563 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)); Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010). A well-pleaded complaint may proceed even if it appears "that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Bell Atlantic Corp., 550 U.S. at 556. Nevertheless, the factual allegations in the complaint must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp., 550 U.S. at 555.

I.

The plaintiff alleges the following facts, which will be assumed true for purposes of the motion to dismiss:

On November 23, 2008, a nurse at Stateville submitted an Institutional Disciplinary Report (IDR) against Plaintiff alleging that he had given her an inappropriate letter (based on the content of the letter). On November 28, 2008, the IDR was submitted to the Adjustment Committee, where Cleo Johnson maliciously requested that the Internal Affairs Department upgrade the simple charge to include more serious charges of insolence and sexual misconduct. On December 1, 2008, Leslie Turner of Internal Affairs falsely created the unsubstantiated charges based on Johnson's malicious request. Turner created these false charges in retaliation of Plaintiff earlier threatening to sue Turner following a previous cell and strip search and drug test of Plaintiff.

On December 9, 2008, Plaintiff received a hearing wherein he asserted that the hearing violated departmental rules and his right to due process because it was conducted after the fourteen day deadline. Raymond Miller, the chair-person of the adjustment committee, found Plaintiff guilty of the false charges, concluding that a re-created IDR was reliable. Miller improperly relied, in part, on Turner's analysis of the handwriting in reaching his decision. Plaintiff was sentenced to 6 months in segregation, with a 3 month revocation of good conduct credits, and a 6 month C-grade demotion. On December 30, 2008, Warden McCann approved the finding of guilty.

Plaintiff was placed in segregation in an extremely cold cell that also had a toilet that did not function. Plaintiff informed Lieutenant Makowski of the conditions in his segregation cell but Makowski just ignored his complaints.

The charges against Plaintiff were reversed and expunged on January 23, 2009. Plaintiff has subsequently been denied a transfer to a medium security prison and meritorious good time credits in retaliation for him filing the grievance that resulted in the reversal and expungement of the previous false charges.

II.

Defendants argue that Plaintiff's due process allegations fail to state a claim. Plaintiff first argues that his due process rights were violated because his hearing was not held within 14 days of the incident as required by the Illinois Administrative Code. However, the allegation that the administrative regulation was violated because he did not receive a hearing within 14 days of the offense does not constitute a violation of his right to due process because procedures set forth in administrative regulations do not create substantive liberty interests; therefore, the procedural protections of due process do not attach. Violations of administrative regulations do not give rise to constitutional claims pursuant to Section 1983. See Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (violation of department procedure or state law is immaterial to whether actions violated federal constitutional right); Stringer v. Lane, No. 89 C 7030, 1992 WL 59101, at *8 (N.D. Ill. March 16, 1992) (Alesia, J.) (violation of department rule requiring hearing on disciplinary charge within eight days is not actionable under Section 1983).

Plaintiff also argues that his due process rights were violated because the finding of guilty was based on false charges, at Johnson's malicious request, and he subsequently was placed in ...


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